United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)

8/17/2019 United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)

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412 U.S. 669

93 S.Ct. 2405

37 L.Ed.2d 254

UNITED STATES and Interstate Commerce Commission,

Appellants,v.

STUDENTS CHALLENGING REGULATORY AGENCY

PROCEDURES (SCRAP) et al. ABERDEEN AND

ROCKFISH RAILROAD COMPANY et al., Appellants, v.

STUDENTS CHALLENGING REGULATORY AGENCY

PROCEDURES (SCRAP) et al.

Nos. 72—535 and 72—562.

Argued Feb. 28, 1973.

Decided June 18, 1973.

Syllabus

The Interstate Commerce Act permits railroads to file proposed freight

rate increases, with at least 30 days' notice to the Interstate Commerce

Commission (ICC) and the public before putting the new rates into effect.

The ICC may, pursuant to § 15(7) of the Act, suspend the operation of the

proposed rates for as long as seven months, in order to investigate the

lawfulness of the rates. At the end of the seven-month period, the carrier

may put the suspended rates into effect unless the ICC has completed its

investigation and found the rates unlawful. Proceeding under the statutoryscheme, substantially all the Nation's railroads sought a 2.5% surcharge

on nearly all freight rates, as an emergency measure to obtain increased

revenues pending adoption of selective rate increases on a permanent

basis. Shippers, competing carriers, and other interested persons requested

the ICC to suspend the tariff for the statutory seven-month period.

Various environmental groups, including Students Challenging

Regulatory Agency Procedures (SCRAP) and the Environmental Defense

Fund, appellees here, protested that failure to suspend the surchargewould cause their members 'economic, recreational and aesthetic harm,'

and specifically, that the new rate structure would discourage the use of

'recyclable' materials and promote the use of raw materials that compete


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with scrap, thus adversely affecting the environment. On February 1,

1972, the ICC issued an order announcing its decision not to suspend the

surcharge for the seven-month period, and on April 24, 1972, ordered the

proposed selective increases filed by the carriers to be suspended for the

full seven-month period ending November 30, 1972, and permitted the

collection of the surcharge until that date. SCRAP filed the present suit

seeking, inter alia, an injunction to restrain enforcement of the February 1and April 24 orders allowing the carriers to collect the surcharge. SCRAP,

an unincorporated association formed by five law students to enhance the

quality of the environment, claimed that its members 'suffered economic,

recreational and aesthetic harm directly as a result of the adverse

environmental impact of the railroad freight structure,' that each of its

members was caused to pay more for finished products, that each of its

members uses the forests, rivers, mountains, and other natural resources of

the Washington, D.C., area and at his legal residence for camping, hiking,fishing, and other purposes, and that these uses have been adversely

affected by increased freight rates. The main thrust of SCRAP's complaint

was that the ICC's orders were unlawful for failure to include a detailed

environmental impact statement as required by § 102(2)(C) of the

National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)

(C). The three-judge District Court found that appellees had standing to

sue. The court held that its power to grant an injunction was not barred by

Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984,10 L.Ed.2d 52, because NEPA 'implicitly confers authority on the federal

courts to enjoin any federal action taken in violation of NEPA's procedural

requirements . . . so long as the review is confined to a determination as to

whether the procedural requisites of NEPA have been followed.' The court

concluded that the ICC's decision not to suspend the surcharge for the

seven-month period was a 'major federal action significantly affecting the

quality of the human environment,' and granted an injunction prohibiting

the ICC 'from permitting' and the railroads 'from collecting' the surcharge

'insofar as that surcharge relates to goods being transported for purposes

of recycling.' Held:

1. Appellees' pleadings sufficiently alleged that they were 'adversely

affected' or 'aggrieved' within the meaning of § 10 of the Administrative

Procedure Act to withstand a motion to dismiss on the ground of lack of

standing to sue. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31

L.Ed.2d 636, distinguished. Pp. 683—690.

(a) Standing is not confined to those who show economic harm, as

'(a)esthetic and environmental well-being, like economic well-being, are

important ingredients of the quality of life in our society.' Sierra Club,


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supra, at 734, 92 S.Ct. at 1366. P. 686.

(b) Here, the appellees claimed that the specific and allegedly illegal

action of the ICC would directly harm them in their use of the natural

resources of the Washington area. Pp. 686 687.

(c) Standing is not to be denied because many people suffer the sameinjury. Pp. 687—688.

(d) It cannot be said on these pleadings that appellees could not prove

their allegations, which, if proved, would place them squarely among

those persons injured in fact by the ICC's action and entitled to review

under Sierra Club, supra. Pp. 688—690.

2. The District Court lacked jurisdiction to issue the injunction. Pp. 690—

698.

(a) Arrow Transportation, supra, held that Congress in § 15(7) had vested

exclusive jurisdiction in the ICC to suspend rates pending its final

decision on their lawfulness and had deliberately extinguished judicial

power to grant such relief; and the factual distinctions between the instant

case and Arrow Transportation are inconsequential. Pp. 690—692.

(b) The alleged noncompliance by the ICC with NEPA did not give theDistrict Court authority to grant the injunction, as NEPA was not intended

to repeal by implication any other statute, and the policies identified in

Arrow Transportation as the basis for § 15(7) would be substantially

undermined if the courts were found to have suspension powers simply

because of noncompliance with NEPA. Pp. 692—698.

346 F.Supp. 189, reversed and remanded.

1 Sol. Gen. Erwin N. Griswold, for the United States and Interstate Commerce

Commission.

2 Hugh B. Cox, Washington, D.C., for the Aberdeen and Rockfish Railroad

Company and others.

3 Peter H. Meyers, Washington, D.C., for Students Challenging RegulatoryAgency Procedures, pro hac vice, by special leave of Court.

4 John F. Dienelt, Washington, D.C., for the Environmental Defense Fund, and


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others, pro hac vice, by special leave of Court.

5 Mr. Justice STEWART delivered the opinion of the Court.

6 Under the Interstate Commerce Act, the initiative for rate increases remains

with the railroads. But in the absence of special permission from the Interstate

Commerce Commission, a railroad seeking an increase must provide at least 30

days' notice to the Commission and the Public before putting the new rate into

effect. 49 U.S.C. § 6(3).1 During that 30-day period, the Commission may

suspend the operation of the proposed rate for a maximum of seven months

pending an investigation and decision on the lawfulness of the new rates. 49

U.S.C. § 15(7).2 At the end of the seven-month period, the carrier may put the

suspended rate into effect unless the Commission has earlier completed its

investigation and found the rate unlawful.3

7 Proceeding under this regulatory scheme, on December 13, 1971, substantially

all of the railroads in the United States requested Commission authorization to

file on 5 days' notice a 2.5% surcharge on nearly all freight rates. The railroads

sought a January 1, 1972, effective date for the new rates. The surcharge was

proposed as an interim emergency measure designed to produce some $246

million annually in increased revenues pending adoption of selective rate

increases on a permanent basis.

8 As justification for the proposed surcharge, the railroads alleged increasing

costs and severely inadequate revenues. In its last general revenue increase

case, less than two years earlier, the Commission had found:

9 '(T)he financial condition of the railroad industry as a whole, and the financial

status of many individual carriers by rail, must be found to be at a dangerously

low level. The precipitous decline in working capital and serious loss of liquidity has reduced many carriers to a truly marginal operation. This has been

most clearly demonstrated by the recent bankruptcy application of the Penn

Central. We think it undeniable that a number of other roads are approaching a

similar financial crisis.' Ex parte Nos. 265/267, Increased Freight Rates, 1970

and 1971, 339 I.C.C. 125, 173.

10 The railroads alleged that, since the close of that proceeding, their costs had

increased by over $1 billion on an annual basis, including $305 million inincreased wages, while economic indicators such as decreased working capital

and increased debt obligations pointed toward an ever-worsening financial

condition.4


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11 In an order dated December 21, 1971, the Commission acknowledged the need,

particularly of some carriers, for increased revenues, but it concluded that five

days' notice and a January 1, 1972, effective date 'would preclude the public

from effective participation.' Ex parte No. 281, Increased Freight Rates and

Charges, 1972, 340 I.C.C. 358, 361. The Commission authorized the railroads

to refile the 2.5% surcharge with not less than 30 days' notice, and an effective

date no earlier than February 5, 1972.

12 On January 5, 1972, the railroads refiled the surcharge, to become effective on

February 5, 1972. Shippers, competing carriers, and other interested persons

requested the Commission to suspend the tariff for the statutory seven-month

period. Various environmental groups, including Students Challenging

Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund

(EDF), two of the appellees here, protested that failure to suspend the surcharge

would cause their members 'economic, recreational and aesthetic harm.'Specifically, they claimed that the rate structure would discourage the use of

'recyclable' materials, and promote the use of new raw materials that compete

with scrap, thereby adversely affecting the environment by encouraging

unwarranted mining, lumbering, and other extractive activities. The members

of these environmental groups were allegedly forced to pay more for finished

products, and their use of forests and streams was allegedly impaired because

of unnecessary destruction of timber and extraction of raw materials, and the

accumulation of otherwise recyclable solid and liquid waste materials. Therailroads replied that since this was a general rate increase, recyclable materials

would not be made any less competitive relative to other commodities, and that

in the past general rate increases had not discouraged the movement of scrap

materials.

13 The Commission issued an order on February 1, 1972, shortly before the

surcharge would have automatically become effective. It recognized that 'the

railroads have a critical need for additional revenue from their interstate freightrates and charges to offset, in part, recently incurred increased operating costs,'

and announced its decision not to suspend the 2.5% surcharge for the seven-

month statutory period.5 In anticipation of the proposed permanent selective

increases to be filed by the railroads and to avoid further complication of the

tariff rates, the Commission specified that its refusal to suspend was

conditioned upon the carriers' setting an expiration date for the surcharge of no

later than June 5, 1972.6 The Commission ordered the investigation into the

railroads' rates which had been instituted by its December 21 order to be held inabeyance until the carriers requested permission to file the indicated permanent

rate increases on a selective basis. With respect to the appellees' environmental

arguments, The Commission found that 'the involved general increase will have


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no significant adverse effect on the movement of traffic by railway or on the

quality of the human environment within the meaning of the (National)

Environmental Policy Act of 1969.'

14 The proposed permanent selective increases, averaging 4.1%, were

subsequently filed with the Commission, and various parties again requested

that these proposed rates also be suspended. By order served March 6, 1972,the Commission did not grant the railroads' request to have the selective

increases go into effect on April 1, 1972, as they had sought but it allowed the

carriers to republish their rates to become effective on May 1, 1972, upon not

less than 45 days' notice to the public. The carriers did republish the rates, and

on April 24, 1972, the Commission entered an order suspending the proposed

selective increase for the full seven-month period allowed by statute, or to and

including November 30, 1972.7 The investigation into the increased rates was

continued. Since the selective increases were to supplant the temporarysurcharge, and since they had been suspended, the Commission modified its

February 1 order and authorized the railroads to eliminate the June 5 expiration

date for the surcharge and to continue collecting the surcharge until November

30, 1972.

15 * On May 12, 1972, SCRAP filed the present suit against the United States and

the Commission in the District Court for the District of Columbia seeking,

along with other relief, a preliminary injunction to restrain enforcement of theCommission's February 1 and April 24 orders allowing the railroads to collect

the 2.5% surcharge.

16 SCRAP stated in its amended complaint that it was 'an unincorporated

association formed by five law students . . . in September, 1971. Its primary

purpose is to enhance the quality of the human environment for its members,

and for all citizens . . ..' To establish standing to bring this suit, SCRAP

repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members 'suffered economic, recreational

and aesthetic harm directly as a result of the adverse environmental impact of

the railroad freight structure, as modified by the Commission's actions to date

in Ex parte 281.' Specifically, SCRAP alleged that each of its members was

caused to pay more for finished products, that each of its members '(u)ses the

forests, rivers, streams, mountains, and other natural resources surrounding the

Washington Metropolitan area and at his legal residence, for camping, hiking,

fishing, sightseeing, and other recreational (and) aesthetic purposes,' and thatthese uses have been adversely affected by the increased freight rates, that each

of its members breathes the air within the Washington metropolitan area and

the area of his legal residence and that this air has suffered increased pollution


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caused by the modified rate structure, and that each member has been forced to

pay increased taxes because of the sums which must be expended to dispose of

otherwise reusable waste materials.

17 The main thrust of SCRAP's complaint was that the Commission's decisions of

February 1 and April 24, insofar as they declined to suspend the 2.5%

surcharge, were unlawful because the Commission had failed to include adetailed environmental impact statement as required by § 102(2)(C) of the

National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C).

NEPA requires such a statement in 'every recommendation or report on

proposals for legislation and other major Federal actions significantly affecting

the quality of the human environment . . ..' Ibid.8 SCRAP contended that

because of its alleged adverse impact upon recycling, the Commission's action

with respect to the surcharge constituted a major federal action significantly

affecting the environment.

18 Three additional environmental groups, also appellees here, were allowed to

intervene as plaintiffs, and a group of railroads, appellants here, intervened as

defendants to support the 2.5% surcharge.9 After a single district judge had

denied the defendants' motion to dismiss and SCRAP's motion for a temporary

restraining order, a statutory three-judge district court was convened pursuant to

28 U.S.C. §§ 2284, 2325, to decide the motion for a preliminary injunction and

the cross-motion to dismiss the complaint.

19 On July 10, 1972, the District Court filed an opinion, 346 F.Supp. 189, and

entered an injunction prohibiting the Commission 'from permitting,' and the

railroads 'from collecting' the 2.5% surcharge 'insofar as that surcharge relates

to goods being transported for purposes of recycling, pending further order of

this court.'10

20 The court first rejected the contention that the appellees were without standing

to sue because they allegedly had no more than 'a general interest in seeing that

the law is enforced,' id., at 195, and distinguished our recent decision in Sierra

Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, on the basis that,

unlike the petitioner in Sierra Club, the environmental groups here had alleged

that their members used the forests, streams, mountains and other resources in

the Washington area and that this use was disturbed by the environmental

impact caused by nonuse of recyclable goods.

21 Second, the court found that its power to grant an injunction was not barred by

our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658,


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II

667, 83 S.Ct. 984, 988, 10 L.Ed.2d 52, where we held that in enacting 49

U.S.C. § 15(7), Congress had intentionally vested 'in the Commission the sole

and exclusive power to suspend' and withdrew 'from the judiciary any pre-

existing power to grant injunctive relief.' The court reasoned that NEPA

'implicitly confers authority on the federal courts to enjoin any federal action

taken in violation of NEPA's procedural requirements' 'so long as the review is

confined to a determination as to whether the procedural requisites of NEPAhave been followed.' 346 F.Supp., at 197 and n. 11.

22 Finally, turning to the merits, the court concluded that the Commission's April

24 decision not to suspend the surcharge for the statutory seven-month period

was a "major Federal action significantly affecting the quality of the human

environment." Id., at 199. On the premise that an environmental impact

statement is required 'whenever the action arguably will have an adverse

environmental impact,' id., at 201, the court held that 'the danger of an adverseimpact is sufficiently real to require a statement in this case.' Ibid.

23 The District Court declined to stay its injunctive order pending appeal to this

Court, and on July 19, 1972, THE CHIEF JUSTICE, as Circuit Justice for the

District of Columbia Circuit, denied applications to stay the preliminary

injunction. 409 U.S. 1207, 93 S.Ct. 1, 34 L.Ed.2d 21. On December 18, 1972,

we noted probable jurisdiction of the appeals filed by the United States, the

Commission, and the railroads. 409 U.S. 1073, 93 S.Ct. 683, 34 L.Ed.2d 662.11

24 The appellants challenge the appellees' standing to sue, arguing that the

allegations in the pleadings as to standing were vague, unsubstantiated, and

insufficient under our recent decision in Sierra Club v. Morton, supra. The

appellees respond that unlike the petitioner in Sierra Club, their pleadings

sufficiently alleged that they were 'adversely affected' or 'aggrieved' within themeaning of § 10 of the Administrative Procedure Act (APA), 5 U.S.C. § 702,12

and they point specifically to the allegations that their members used the

forests, streams, mountains, and other resources in the Washington

metropolitan area for camping, hiking, fishing, and sightseeing, and that this

use was disturbed by the adverse environmental impact caused by the nonuse

of recyclable goods brought about by a rate increase on those commodities. The

District Court found these allegations sufficient to withstand a motion to

dismiss. We agree.

25 The petitioner in Sierra Club, 'a large and long-established organization, with a

historic commitment to the cause of protecting our Nation's natural heritage


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from man's depredations,' 405 U.S., at 739, 92 S.Ct., at 1368, sought a

declaratory judgment and an injunction to restrain federal officials from

approving the creation of an extensive ski-resort development in the scenic

Mineral King Valley of the Sequoia National Forest. The Sierra Club claimed

standing to maintain its 'public interest' lawsuit because it had "a special interest

in the conservation and (the) sound maintenance of the national parks, game

refuges and forests of the country . . .." Id., at 730, 92 S.Ct., at 1364. We heldthose allegations insufficient.

26 Relying upon our prior decisions in Association of Data Processing Service v.

Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 184, and Barlow v. Collins, 397

U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192, we held that § 10 of the APA

conferred standing to obtain judicial review of agency action only upon those

who could show 'that the challenged action had caused them 'injury in fact,' and

where the alleged injury was to an interest 'arguably within the zone of intereststo be protected or regulated' by the statutes that the agencies were claimed to

have violated.' 405 U.S., at 733, 92 S.Ct., at 1365.13

27 In interpreting 'injury in fact' we made it clear that standing was not confined to

those who could show 'economic harm,' although both Data Processing and

Barlow had involved that kind of injury. Nor, we said, could the fact that many

persons shared the same injury be sufficient reason to disqualify from seeking

review of an agency's action any person who had in fact suffered injury. Rather,we explained: 'Aesthetic and environmental well-being, like economic well-

being, are important ingredients of the quality of life in our society, and the fact

that particular environmental interests are shared by the many rather than the

few does not make them less deserving of legal protection through the judicial

process.' Id., at 734, 92 S.Ct., at 1366. Consequently, neither the fact that the

appellees here claimed only a harm to their use and enjoyment of the natural

resources of the Washington area, nor the fact that all those who use those

resources suffered the same harm, deprives them of standing.

28 In Sierra Club, though, we went on to stress the importance of demonstrating

that the party seeking review be himself among the injured, for it is this

requirement that gives a litigant a direct stake in the controversy and prevents

the judicial process from becoming no more than a vehicle for the vindication

of the value interests of concerned bystanders. No such specific injury was

alleged in Sierra Club. In that case the asserted harm 'will be felt directly only

by those who use Mineral King and Sequoia National Park, and for whom theaesthetic and recreational values of the area will be lessened by the highway

and ski resort,' id., at 735, 92 S.Ct., at 1366, yet '(t)he Sierra Club failed to

allege that it or its members would be affected in any of their activities or


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pastimes by the . . . development.' Ibid. Here, by contrast, the appellees claimed

that the specific and allegedly illegal action of the Commission would directly

harm them in their use of the natural resources of the Washington Metropolitan

Area.

29 Unlike the specific and geographically limited federal action of which the

petitioner complained in Sierra Club, the challenged agency action in this caseis applicable to substantially all of the Nation's railroads, and thus allegedly has

an adverse environmental impact on all the natural resources of the country.

Rather than a limited group of persons who used a picturesque valley in

California, all persons who utilize the scenic resources of the country, and

indeed all who breathe its air, could claim harm similar to that alleged by the

environmental groups here. But we have already made it clear that standing is

not to be denied simply because many people suffer the same injury. Indeed

some of the cases on which we relied in Sierra Club demonstrated the patentfact that persons across the Nation could be adversely affected by major

governmental actions. See, e.g., Environmental Defense Fund v. Hardin, 138

U.S.App.D.C. 391, 428 F.2d 1093, 1097 (interests of consumers affected by

decision of Secretary of Agriculture refusing to suspend registration of certain

pesticides containing DDT); Reade v. Ewing, 2 Cir., 205 F.2d 630, 631—632

(interests of consumers of oleomargarine in fair labeling of product regulated by

Federal Security Administration). To deny standing to persons who are in fact

injured simply because many others are also injured, would mean that the mostinjurious and widespread Government actions could be questioned by nobody.

We cannot accept that conclusion.

30 But the injury alleged here is also very different from that at issue in Sierra

Club because here the alleged injury to the environment is far less direct and

perceptible. The petitioner there complained about the construction of a

specific project that would directly affect the Mineral King Valley. Here, the

Court was asked to follow a far more attenuated line of causation to theeventual injury of which the appellees complained—a general rate increase

would allegedly cause increased use of nonrecyclable commodities as

compared to recyclable goods, thus resulting in the need to use more natural

resources to produce such goods, some of which resources might be taken from

the Washington area, and resulting in more refuse that might be discarded in

national parks in the Washington area. The railroads protest that the appellees

could never prove that a general increase in rates would have this effect, and

they contend that these allegations were a ploy to avoid the need to show someinjury in fact.

31 Of course, pleadings must be something more than an ingenious academic


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III

exercise in the conceivable. A plaintiff must allege that he has been or will in

fact be perceptibly harmed by the challenged agency action, not that he can

imagine circumstances in which he could be affected by the agency's action.

And it is equally clear that the allegations must be true and capable of proof at

trial. But we deal here simply with the pleadings in which the appellees alleged

a specific and perceptible harm that distinguished them from other citizens who

had not used the natural resources that were claimed to be affected.14 If, as therailroads now assert, these allegations were in fact untrue, then the appellants

should have moved for summary judgment on the standing issue and

demonstrated to the District Court that the allegations were sham and raised no

genuine issue of fact.15 We cannot say on these pleadings that the appellees

could not prove their allegations which, if proved, would place them squarely

among those persons injured in fact by the Commission's action, and entitled

under the clear import of Sierra Club to seek review. The District Court was

correct in denying the appellants' motion to dismiss the complaint for failure toallege sufficient standing to bring this lawsuit.

32 We need not reach the issue whether, under conventional standards of equity,

the District Court was justified in issuing a preliminary injunction, because we

have concluded that the court lacked jurisdiction to enter an injunction in any

event.

33 The District Court enjoined the Commission from 'permitting,' and the railroads

from 'collecting,' the 2.5% interim surcharge on recyclable commodities.

Finding that NEPA implicitly conferred authority 'on the federal courts to

enjoin any federal action taken in violation of NEPA's procedural requirements,'

346 F.Supp., at 197, it concluded that our decision in Arrow Transportation Co.

v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52, did not affect

judicial power to issue an injunction in the circumstances of this case. Wecannot agree.

34 In Arrow, the Commission had suspended a railroad's proposed rates for the

statutory seven-month period, and the railroad had voluntarily deferred the

proposed rate for an additional five months. When the Commission had not

reached a final decision within that period, the railroad announced its intent to

adopt the new rates. In a suit brought to enjoin the railroad from effectuating

that change, we held that the courts were without power to issue such aninjunction. From the language and history of § 15(7) of the Interstate

Commerce Act, we concluded that Congress had vested exclusive power in the

Commission to suspend rates pending its final decision on their lawfulness, and


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had deliberately extinguished judicial power to grant such relief. The factual

distinctions between the present cases and Arrow are inconsequential.

35 It is true that the injunction in Arrow was sought after the statutory seven-

month period had expired and thus represented an attempt to extend judicially

the suspension period, while here the injunction was issued during the

suspension period. But Arrow was grounded on the lack of power in the courtsto grant any injunction before the Commission had finally determined the

lawfulness of the rates, and that holding did not depend on the fact that the

availability of the Commission's power of suspension had passed. Indeed, the

federal court decisions cited and approved in Arrow involved instances where

the courts had been asked to enjoin rates during the statutory seven-month

period. See, e.g., M. C. Kiser Co. v. Central of Georgia R. Co., D.C., 236 F.

573, aff'd, 5 Cir., 239 F. 718; Freeport Sulphur Co. v. United States, D.C., 199

F.Supp. 913; Bison S.S. Corp. v. United States, D.C., 182 F.Supp. 63;Luckenbach S.S. Co. v. United States, D.C., 179 F.Supp. 605, 609—610,

vacated in part as moot, 364 U.S. 280, 80 S.Ct. 1611, 4 L.Ed.2d 1719; Carlsen

v. United States, D.C., 107 F.Supp. 398.

36 Similarly, there is no significance in the fact that, unlike Arrow, the injunction

in this litigation ran against the Commission as well as the railroads. The only

way in which the Commission could comply with the court's order would be to

exercise its power of suspension and suspend the surcharge. The injunctionconstitutes a direct interference with the Commission's discretionary decision

whether or not to suspend the rates. It would turn Arrow into a sheer formality

and effectively amend § 15(7) if a federal court could accomplish by injunction

against the Commission what it could not accomplish by injunction directly

against the railroads. And, again, the federal court decisions on which Arrow

relied were for the most part cases in which the courts had held that they were

without power to compel the Commission to grant a rate suspension. See, e.g.,

Bison S.S. Corp. v. United States, supra; Luckenbach S.S. Co. v. United States,supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United

States, supra.16

37 Thus, the only arguably significant distinction between the present litigation

and Arrow is that here the Commission allegedly failed to comply with NEPA.

However, we cannot agree with the District Court that NEPA has amended §

15(7) sub silentio and created an implicit exception to Arrow so that judicial

power to grant injunctive relief in this case has been revived.17 NEPA, one of the recent major federal efforts at reversing the deterioration of the country's

environment, declares 'that it is the continuing policy of the Federal

Government . . . to use all practicable means and measures . . . in a manner


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calculated to foster and promote the general welfare, to create and maintain

conditions under which man and nature can exist in productive harmony, and

fulfill the social, economic, and other requirements of present and future

generations of Americans.' 42 U.S.C. § 4331. To implement these lofty

purposes, Congress imposed a number of responsibilities upon federal agencies,

most notably the requirement of producing a detailed environmental impact

statement for 'major Federal actions significantly affecting the quality of thehuman environment.' 42 U.S.C. § 4332(2)(C).18 But nowhere, either in the

legislative history or the statutory language, is there any indication that

Congress intended to restore to the federal courts the power temporarily to

suspend railroad rates, a power that had been clearly taken away by § 15(7) of

the Interstate Commerce Act.

38 The statutory language, in fact, indicates that NEPA was not intended to repeal

by implication any other statute. Thus, 42 U.S.C. § 4335 specifies that '(t)he policies and goals set forth in (NEPA) are supplementary to those set forth in

existing authorizations of Federal agencies,' and 42 U.S.C. § 4334 instructs that

the Act 'shall (not) in any way affect the specific statutory obligations of any

Federal agency . . ..' Rather than providing for any wholesale overruling of

prior law, NEPA requires all federal agencies to review their 'present statutory

authority, administrative regulations, and current policies and procedures for

the purpose of determining whether there are any deficiencies or

inconsistencies therein which prohibit full compliance with the purposes and provisions of (NEPA) and shall propose to the President . . . such measures as

may be necessary to bring their authority and policies into conformity with the

intent, purposes, and procedures set forth in (NEPA).' 42 U.S.C. § 4333. It

would be anomalous if Congress had provided at one and the same time that

federal agencies, which have the primary responsibility for the implementation

of NEPA,19 must comply with present law and ask for any necessary new

legislation, but that the courts may simply ignore what we described in Arrow

as 'a clear congressional purpose to oust judicial power . . ..' 372 U.S., at 671 n.22, 83 S.Ct., at 991.20

39 The District Court pointed to nothing either in the language or history of NEPA

that suggests a restoration of previously eliminated judicial power. While it

relied primarily on the decisions of the Court of Appeals for the District of

Columbia Circuit in Calvert Cliffs' Coordinating Comm. v. Atomic Energy

Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109, and Committee for Nuclear

Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs'

held that a federal court had power to review rules promulgated by the Atomic

Energy Commission, and there the court ordered further consideration of the


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rules on the ground that there had not been compliance with NEPA. In

Committee for Nuclear Responsibility it was held that federal courts had

jurisdiction to consider whether an executive decision to conduct a nuclear test

had satisfied the procedural requirements of NEPA. The question here,

however, is not whether there is general judicial power to determine if an

agency has complied with NEPA, and to grant equitable relief if it has not, cf.

Arrow Transportation Co. v. Southern R. Co., supra, 372 U.S., at 671 n. 22, 83S.Ct. at 991, Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86

L.Ed. 1229, but rather whether in a specific context NEPA sub silentio revived

judicial power that had been explicitly eliminated by Congress. Calvert Cliffs'

and Committee for Nuclear Responsibility have nothing to say on this issue, for

neither was concerned with a specific statute that restricts the power of the

federal courts to grant injunctions.21

40 Our conclusion that the District Court lacked the power to grant the presentinjunction is confirmed by the fact that each of the policies that we identified in

Arrow as the basis for § 15(7) would be substantially undermined if the courts

were found to have suspension powers simply because noncompliance with

NEPA was alleged.

41 First, Arrow found that the Commission had been granted exclusive suspension

powers in order to avoid the diverse results that had previously been reached by

the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates

had been jeopardized, and different shippers, carriers, and areas of the country

had been subjected to disparate treatment. Similarly, since a suit to enjoin a

national rate increase on NEPA grounds could be brought in any federal district

court in the country, see 28 U.S.C. §§ 2284, 2321—2325, the result might

easily be that the courts would '(reach) diverse results, . . . (engendering)

confusion and (producing) competitive inequities.' 372 U.S., at 663, 83 S.Ct., at

987. In short, a rate increase allowed in New York might be disallowed in NewJersey.

42 Second, we stressed in Arrow that § 15(7) represents a careful accommodation

of the various interests involved. The suspension period was limited as to time

to prevent excessive harm to the carriers, for the revenues lost during that

period could not be recouped from the shippers. On the other hand, Congress

was aware that if the Commission did not act within the suspension period,

then the new rates would automatically go into effect and the shippers wouldhave to pay increased rates that might eventually be found unlawful. To

mitigate this loss, Congress authorized the Commission to require the carriers

to keep detailed accounts and eventually to repay the increased rates if found


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unlawful. To allow judicial suspension for noncompliance with NEPA, would

disturb this careful balance of interests. A railroad may depend for its very

financial life on an increased rate, and the rate may be perfectly just and

reasonable. Granting an injunction against that rate based on the Commission's

alleged noncompliance with NEPA, although the Commission had determined

not to suspend the rate, would deprive the railroad of vitally needed revenues

and result in an unjustified windfall to shippers.

43 Finally, we found in Arrow that any survival of a judicial power to grant

interim injunctive relief would represent an undesirable interference with the

orderly exercise of the Commission's power of suspension. Similarly, to grant

an injunction in the present context, even though not based upon a substantive

consideration of the rates, would directly interfere with the Commission's

decision as to when the rates were to go into effect, and would ignore our

conclusion in Arrow that 'Congress meant to foreclose a judicial power tointerfere with the timing of rate changes which would be out of harmony with

the uniformity of rate levels fostered by the doctrine of primary jurisdiction.'

372 U.S., at 668, 83 S.Ct., at 990. As the Court of Appeals for the Second

Circuit explained in Port of New York Authority v. United States, 451 F.2d

783, 788, where, on the basis of alleged noncompliance with NEPA, an

injunction was sought against a Commission order refusing to suspend rates:

44 'The basis of the decision in Arrow—that to permit judicial interference withthe Commission's suspension procedures would invite the very disruption in the

orderly review of the lawfulness of proposed tariffs that Congress meant to

preclude—applies with equal force to the issue now before us.'

45 Accordingly, because the District Court granted a preliminary injunction

suspending railroad rates when it lacked the power to do so,22 its judgment

must be reversed and the cases remanded to that court for further proceedings

consistent with this opinion.

46 Reversed and remanded.

47 Mr. Justice POWELL took no part in the consideration or decision of these

cases.

48 Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN joins,concurring.

49 I join the Court's judgment and its opinion, but because of the presence of the


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first sentence of Part III of the opinion, and to avoid any misunderstanding as to

my posture, I add a few words.

50For the reasons stated in my dissenting opinion in Sierra Club v. Morton, 405

U.S. 727, 755, 92 S.Ct. 1361, 1376, 31 L.Ed.2d 636 (1972), I would hold that

the appellees here have standing to maintain this action based on their

allegations of harm to the environment resulting from the Commission's order of April 24, 1972. And, in evaluating whether injunctive relief is warranted, I

would not require that the appellees, in their individual capacities, prove that

they in fact were injured. Rather, I would require only that appellees, as

responsible and sincere representatives of environmental interests, show that

the environment would be injured in fact and that such injury would be

irreparable and substantial.

51 Mr. Justice DOUGLAS, dissenting in part.

52 * These cases present important environmental problems. They concern rate-

making for the shipment of litter for recycling. Paper, glass, and metals are the

main items in today's garbage.1 As indicated by the Bureau of Mines in

Appendix I to this opinion, America's method of disposing of garbage is either

to use it for landfill or to put it first through incinerators and then to bury the

residue. Sorting and recycling have several environmental impacts: (1)

reduction in the use of incinerators lessens air pollution; (2) establishing or

encouraging removal of litter from the landscape; (3) recycling saves both

renewable and nonrenewable resources. As respects the last, the tons of paper

that are recycled, rather than burned, can be translated into the number of

standing trees that need not be cut for pulp the next year; the metals recycled

protect our remaining nonrenewable supplies of ore, and so on.

53 Rates fixed so as to encourage vast shipments of litter are, therefore, perhaps

the most immediate and dramatic illustration of a policy which will encourage

protection of the environment against several erosive conditions.2 I would,

therefore, affirm the eminently responsible decision of the District Court. 346

F.Supp. 189.

54 The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321

et seq., declares a congressional policy

55 'which will encourage productive and enjoyable harmony between man and his

environment; to promote efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and welfare of man; to


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enrich the understanding of the ecological systems and natural resources

important to the Nation; and to establish a Council on Environmental Quality.'

42 U.S.C. § 4321.

56 That broad policy is further expounded in § 4331(b) to include, inter alia, the

objective that 'the Nation may . . . (2) assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing surroundings . . . and (6)enhance the quality of renewable resources and . . . depletable resources.' The

Government urges that appellees do not have standing to challenge the

administrative determination of railroad freight rate increases. SCRAP alleged

in its amended complaint that its members suffered environmental and

economic injury as a result of the alleged increase, because the increase

diminished the total amount of waste recycling in the United States, and made

those products, which were in fact manufactured from the waste materials after

the rate increase, more expensive in the marketplace. In addition, SCRAPalleged that each of its members in fact used the 'forests, rivers, streams,

mountains, and other natural resources . . .' for recreational purposes, and these

uses were adversely affected because the Commission's rate increases

discourage the reuse of recyclable commodities, such as bottles and cans, and

encourage the depletion of natural resources.

57 In Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d

636 this Court stated that, 'We do not question that (environmental) harm mayamount to an 'injury in fact' sufficient to lay the basis for standing under . . . the

APA (5 U.S.C. § 702). Aesthetic and environmental well-being, like economic

well-being, are important ingredients of the quality of life in our society, and

the fact that particular environmental interests are shared by the many rather

than the few does not make them less deserving of legal protection through the

judicial process.' The members of SCRAP have clearly alleged an 'injury in

fact' to the environment and to their own personal continued use of it.

58 'There is nothing unusual or novel in granting the consuming public standing to

challenge administrative actions.' Office of Communication of United Church

of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994. This Court has

indicated that where 'statutes are concerned, the trend is toward enlargement of

the class of people who may protest administrative action.' Association of Data

Processing Service v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d

184.

59 Littering is a commonplace phenomenon that affects every person, almost

everywhere. From reports and writings we know that littering defaces mountain

trails, alpine meadows, and even our highest peaks. Those in the valleys are


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II

often almost inundated with litter. Where a river is polluted and a person is

dependent on it for drinking water, I suppose there would not be the slightest

doubt that he would have standing in court to present his claim. I also suppose

there is not the slightest doubt that where smog settles on a city, any person

who must breathe that air or feel the sulphuric acid forming in his eyes, would

have standing in court to present his claim. I think it is equally obvious that any

resident of an area whose paths are strewn with litter, whose parks, or picnicgrounds are defaced by it has standing to tender his complaint to the court.

Sierra Club v. Morton, supra, would seem to cover this case, for littering

abetted by the failure to recycle would clearly seem to implicate residents to

whom 'the aesthetic and recreational values of the area' are important. Id., 405

U.S., at 735, 92 S.Ct., at 1366. For the reasons stated in my opinion in Sierra

Club v. Morton, supra, I agree with the Court that appellees have standing, but

like Mr. Justice BLACKMUN, I would not require appellees, in their individual

capacity, to prove injury in fact. As Mr. Justice BLACKMUN states, it should be sufficient if appellees, 'as responsible and sincere representatives of

environmental interests, show that the environment would be injured in fact . .

..'

60 The Council on Environmental Quality (CEQ), created in the Executive Office

of the President, 42 U.S.C. § 4342, estimated in 1969 that this Nation producedmore than 4.3 billion tons of solid refuse, including about 30 million tons of

paper, 30 million tons of industrial fly ash, 15 million tons of scrap metal, 4

million tons of plastics, 100 million automobile tires, 30 billion bottles, 60

billion cans, and millions of discarded automobiles and appliances. First Annual

Report of CEQ, Aug. 1970, pp. 107—113. It reported that while most of the

secondary material could be reused as a replacement for virgin material, only a

small fraction was recycled. Ibid. One of the reasons for the absence of

recycling was the high cost both of collection of the material and thetransportation costs. Ibid.

61 As noted, one of the purposes of the Act was to 'enhance the quality of

renewable resources and approach the maximum attainable recycling of

depletable resources.' 42 U.S.C. § 4331(b)(6). On October 9, 1970, Chairman

Russell Train of CEQ wrote the Interstate Commerce Commission as follows:

62 'The Council on Environmental Quality is deeply concerned with all facets of environmental quality. Solid waste disposal is one important aspect of the total

pollution problem, and recycling is a new and desirable alternative to solid

waste disposal which the Council strongly supports. The degree to which this


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technique will be used depends almost entirely on economics. Transportation

costs, to the degree they increase secondary or scrap materials costs compared

to the raw materials with which they compete, act as a disincentive to recycling.

The Council believes that several rail haul costs biases currently exist and

would like to discuss these cases with you. . . . In general, across-the-board

percentage increases only widen existing price biases against secondary

materials. Also, these increases raise the costs of doing business which canhinder the salvage and reclamation industry.

63 'In light of the President's concern with environmental quality, the growing

problems of solid waste and the importance of recycling to alleviating them, I

would like to express the Council's hope that the Interstate Commerce

Commission's actions on the key issue of scrap material transportation rates

will be consistent with the Nation's environmental quality goals.' App. 68.

64 In December 1971 substantially all the railroads filed with the Commission a

request to impose a 2.5% surcharge on virtually all freight. The procedural

details which followed are not presently material. Suffice it to say that shippers

of recyclable materials submitted verified statements in support of their view

that rate increases would intensify the disincentives to shipment and use of

recyclable materials. Thus the Institute for Scrap Iron and Steel submitted a

study showing:

65 '(1) Present scrap markets are retarded because of transport rates which

encourage the usage of iron ore. (2) Future scrap markets are being affected

because new investment that would logically be directed to scrap-intensive

steelmaking is diverted because of the existing freight rate structure to ore-

intensive steelmaking. (3) Iron ore (a limited domestic natural resource) is

being exploited when it can and should be conserved. (4) Some scrap iron that

should be recycled is unable to move, thus the environment is despoiled by

unnecessary accumulations of solid metallic waste.' T. Barnes, Impact of Railroad Freight Rates on the Recycling of Ferrous Scrap (Jan. 14, 1972).

66 The Commission instituted a proceeding concerning the guidelines which

environmental impact statements required under the Act should follow. 339

I.C.C. 508. A spokesman for the eastern railroads filed an impact statement

which said that 'any possible adverse environmental impact in the form of

reduced movements of commodities by rail will come only if we fail to provide

adequate and efficient service' and that the need of the railroads to that end was

for increased revenues. Appellees filed a protest and a request for a suspension

of the proposed surcharge alleging that the present railroad rate structure

discourages the movement of 'recyclable' goods and that the surcharge would


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further discourage recycling.

67 The Commission, allowing the surcharge for a limited period, found that it

would 'have no significant adverse effect in the movement of traffic by railway

or on the quality of the human environment' within the meaning of the 1969

Act. See 340 I.C.C. 358; 341 I.C.C. 287.

68 Chairman Train of CEQ protested to the Commission on October 30, 1972.

69 'It is understandable that difficulties will be encountered in quantifying the

environmental consequences of an incremental freight rate increase on

recyclable materials. In our view, however, these consequences must be

assessed in the light of the rate disparity between secondary and primary

materials that gives rise to the problem in the first place. This disparity is amatter of an entirely different magnitude, calling for a thorough environmental

assessment as a precondition to determining whether subsequent incremental

increases require additional environmental impact statements. . . . Clearly at

some point increases which might be individually 'insignificant' become

cumulatively 'significant.' In addition, the claim that freight rates on recycled

products must be increased to respond to 'emergency' revenue needs pending

completion of the required, overall environmental evaluation, loses much of its

force as months turn into years and the basic investigation remains

uncompleted. Finally, even the 'emergency' argument itself, however

legitimate, in no way forecloses the consideration of alternatives which would

both meet revenue needs and at the same time avoid further potential

environmental damage while the basic rate structure issue is being resolved.

Alternatives of this sort were, in fact, suggested in the partial dissenting

opinions of Commissioners Brown and Deason (who would have denied

approval of increases for recyclable commodities), with no indication in the

Commission's majority report that such measures would not have been

sufficient to meet the revenue needs relied on to justify the rate increases. . . . Insummary, the Council feels that the basic environmental issues related to the

existing freight rate structure and changes thereto, must be evaluated in a

logical, analytical and timely fashion in compliance with the requirements of

the National Environmental Policy Act. The Commission's actions to date

appear to be inconsistent with the objectives of NEPA, and the analyses

undertaken to date by the Commission appear to offer an inadequate basis from

which to draw conclusions concerning the impact of freight rates on recycling

and environmental quality. Our staff is available to discuss the NEPA procedural issues as well as to assist in structuring the analytical work required

to assess adequately the environmental impact of freight rates.'3 App. 87—89.


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70 The three-judge District Court held that the conclusion of the Commission that

the rate increase would have 'no significant adverse effect' on the environment

within the meaning of EPA was 'transparent' and 'a ruse.' 346 F.Supp., at 200—

201. This leads to an analysis of § 102 of NEPA.4

71 That section is directed to 'all agencies of the Federal Government,' which of course includes the Interstate Commerce Commission. It directs the agency to

interpret and administer 'the policies, regulations, and public laws' which it

administers 'to the fullest extent possible' in accordance with the policies of

EPA. It directs the agency5 to include in 'major Federal actions significantly

affecting the quality of the human environment' a detailed statement 'by the

responsible official on—(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the

proposal be implemented, (iii) alternatives to the proposed action, (iv) the

relationship between local short-term uses of man's environment and the

maintenance and enhancement of long-term productivity, and (v) any

irreversible and irretrievable commitments of resources which would be

involved in the proposed action should it be implemented. Prior to making any

detailed statement, the responsible Federal official shall consult with and obtain

the comments of any Federal agency which has jurisdiction by law or special

expertise with respect to any environmental impact involved. Copies of such

statement and the comments and view of the appropriate Federal, State, and

local agencies, which are authorized to develop and enforce environmentalstandards, shall be made available to the President, the Council on

Environmental Quality and to the public as provided by section 552 of Title 5, .

. . and shall accompany the proposal through the existing agency review

processes.' 83 Stat. 853.

72 Rates affecting litter, like rates affecting other commodities, obviously are

relevant to the ease and expedition with which it will be transported. To get the

litter to appropriate recycling plants in the quantities needed to protect our fast

depleting forests and our nonrenewable resources6 and to relieve our landscape

of the litter that plagues us may need special incentive rates.

73 The report, H.R.Conf.Rep. No. 91—765, makes clear that no agency of the

Federal Government is exempt and that each should comply unless existing law

applicable to the agency 'expressly prohibits or makes full compliance with one

of the directives impossible.' The report states:

74 'The purpose of the new language is to make it clear that each agency of the

Federal Government shall comply with the directives set out in such


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subparagraphs (A) through (H) unless the existing law applicable to such

agency's operations expressly prohibits or makes full compliance with one of

the directives impossible. If such is found to be the case, then compliance with

the particular directive is not immediately required. However, as to other

activities of that agency, compliance is required. Thus, it is the intent of the

conferees that the provision 'to the fullest extent possible' shall not be used by

any Federal agency as a means of avoiding compliance with the directives setout in section 102. Rather, the language in section 102 is intended to assure that

all agencies of the Federal Government shall comply with the directives set out

in said section 'to the fullest extent possible' under their statutory authorizations

and that no agency shall utilize an excessively narrow construction of its

existing statutory authorizations to avoid compliance.' 2 U.S.Code Cong. &

Admin.News, 91st Cong., 1st Sess.1969, p. 2770.

75 The District Court, acting responsibly in light of the broad and clear-cut policyof the Act concluded that it sets a "high standard" for federal agencies, that

there is no "escape hatch for footdragging agencies," that the Act does not

make the preparation and use of these impact statements "discretionary," that

Congress did not intend that this Act be "a paper tiger." 346 F.Supp., at 199.7

76 Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10

L.Ed.2d 52, does not preclude review here. In Arrow there were rates which the

Commission had the power to suspend but had not suspended. The power of suspension was entrusted to the Commission only; and we held that the courts

should not intrude when the Commission has not acted. Here the Commission

has acted; it has found that 'the increases here proposed are just and reasonable,

that the revenues derived therefrom will result in earnings and rates of return . .

. not in excess of that required to enable' the carriers 'to render adequate and

efficient transportation at the lowest cost consistent with the furnishing of such

service.' Exparte 281, Order of Feb. 1, 1972 (unreported). The Commission said

it was not prescribing rates, though it attached conditions on approval of therates without suspension. It made clear it would suspend the new rates if the

conditions were not added. As stated by the three-judge court: 'A suspension

decision which effectively blackmails the carriers into submitting agency-

authored rates is functionally indistinguishable from an agency order setting

those rates.' 346 F.Supp., at 197.

77 Moreover, as the three-judge court held and as Judge Friendly observed in City

of New York v. United States, D.C., 337 F.Supp. 150, 164, 'NEPA is a new andunusual statute imposing substantive duties which overlie those imposed on an

agency by the statute or statutes for which it has jurisdictional responsibility.'


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78 The Court today greatly weakens NEPA in a crucially important segment of the

federal environmental field. Movement of litter to recycling plants8 is critically

important, as Chairman Train makes abundantly clear. The alternative is to

leave it underfoot or to cart it off as garbage to incinerators that pollute the air

or to landfills that are getting more and more difficult to find.9 We know that

recycled paper, recycled copper, recycled iron, and recycled glass are practical.

The Federal Bureau of Mines in its pilot plant at Edmonston, Maryland, boasts

that 'urban ore,' as it calls this debris, costs about $3 a ton and recycled is worth

$11 a ton. We know that we deal here with nonrenewable resources. We are

told that recycling paper saves thousands of acres of trees a year.10

79 Under the Act, the appraisal by the Council on Environmental Quality of which

Russell Train is the chairman is a weighty one, for under § 204 of the Act it has

the responsibility 'to appraise the various programs and activities of the Federal

Government' in light of the policy of the Act and 'to develop and recommend . .

. national policies to foster and promote the improvement of environmental

quality.' 83 Stat. 855; 42 U.S.C. §§ 4344(3), (4). CEQ is, in other words, the

expert ombudsman in the environmental area.

80 The apparent tendency among federal agencies, Congressman Dingell says,11 is

to decide first what they want to do and then prepare an impact statement as an

apologia for what they have done. That puts the cart before the horse. That iswhat the Commission did here. But that is to adopt 'an excessively narrow

construction' of its statutory power 'to avoid compliance' with the new

environmental standards—all as condemned in the Conference report, supra, at

10. That is to say, environmental considerations are, so far as possible, to shape

all agency policies and decisions.

81 These cases are, indeed, Exhibit A of the current practice of federal agencies to

undermine the policy announced by Congress in NEPA. Rail rates were longdiscriminatory in retarding the industrial development of the South. New York

v. United States, 331 U.S. 284, 67 S.Ct. 1207, 91 L.Ed. 1492. The present rates

are arguably discriminatory against the removal of the litter which is about to

engulf us. The wisdom of Chairman Train, rather than the technical maneuvers

of the Commission, should be our guide.

82 I would affirm the judgment of the District Court.

83 APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART

84 The Bureau of Mines had at Edmonston, Maryland, for several years an


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FACT SHEET

DEPARTMENT OF THE INTERIOR

incinerator residue processing plant on the basis of which Lowell,

Massachusetts, instituted its Resource Recovery Project.

85 The Edmonston project is now engaged in recycling of raw waste and the

following is the Bureau's description of the nature and scope of that project.

86 Edmonston (Md.) Solid Waste Recycling Project Bureau of Mines

87 An important part of the solid waste utilization research carried on by the

Bureau of Mines is to develop methods and processes for recycling mineral

materials present in urban refuse. Engineers from the Bureau's College Park (Md.) Metallurgy Research Center operate a pilot plant at Edmonston,

Maryland, where they reclaim ferrous metals, nonferrous metals, glass, plastics,

and paper from raw unburned refuse. The following facts are pertinent to the

research underway at the Edmonston pilot plant.

88 xxx—100 pounds of typical municipal refuse contains:

89 36.6 pounds of paper and cardboard; 20.2 pounds of garbage; 8.4 pounds of

metal; 8.5 pounds of glass; 17.4 pounds of leaves, grass, hedge clippings and

tree prunings; 2.6 pounds of scrap wood; 1.1 pound of plastics; and 5.2 pounds

of miscellaneous material including leather, rubber, textiles, bricks, stones, and

dirt.

90 xxx—Urban refuse generated in the U.S. in 1972 totaled 300 million tons, or

the equivalent of more than 8 pounds daily for every man, woman, and child.

91 xxx—Only 220 million tons of municipal refuse was regularly collected by

public agencies and private firms. The remainder (80 million tons) was

abandoned, dumped at the point of origin, or hauled to uncontrolled disposal

sites.

92 xxx—The volume of municipal refuse accumulating in the U.S. in a single year

would cover an area half the size of the State of Connecticut (2,500 sq. mi.)with a layer of refuse 1 foot deep. This refuse contains some 12 million tons of

iron and steel, 13 million tons of glass, and over a million tons of aluminum,

zinc, lead, tin, and copper.


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93 xxx—Collecting and disposing of refuse costs cities an average of $23 per ton

($18, for collection and $5, for disposal). New York City, at a cost of $40 per

ton, spends almost a million dollars each day to collect and dispose of solid

waste. Total U.S. bill runs about $6 billion annually.

94 xxx—Most municipal refuse is disposed of by dumping, landfill, or

incineration. About 30 million tons of municipal refuse is burned annually inmore than 300 municipal incinerators. These incinerators generate 7.5 million

tons of residues, which are then buried. The process developed by the Bureau

to reclaim the values from incinerator residues has attracted world-wide

attention. A commercial size plant of this type will soon be under construction

in Lowell, Massachusetts, with seventy-five percent of the.$3.2 million

required, being provided by the Environmental Protection Agency.

95 xxx—Successful reclamation of mineral values from incinerator residues at theBureau's pilot plant prompted research to save also that part of municipal refuse

that is now being lost during burning. This would reduce the need for building

more municipal incinerators, saving their construction and operating costs, and

would bring income from salvaged paper and plastics as well as metals and

glass. It would also eliminate air pollution problems connected with

incineration.

96 xxx—Equipment for mechanical separation of metals, glass, paper, and plastics

from municipal refuse before incineration has been assembled at Edmonston.

The process involves coarse shredding of the refuse, followed with air

classification, magnetic separation, screening, optical sorting, electrostatic

separation, and gravity concentration—all proven methods used in the minerals

industries.

97 xxx—Other refuse recycling schemes have been proposed and some are already

under development. The process developed by the Bureau is unique in the

following major respects: (1) it is the only process that embodies a complete

system, (2) it is the only process capable of capturing and concentrating

putrescibles and glass, (3) it is the only process that produces a tin can product

suitable for detinning, (4) it is the only process capable of accepting extremely

massive pieces of metal, (5) it is the only process that can successfully separate

plastics and paper, and (6) energy requirements for the Bureau's process are by

far the least of all proposed processes.

98 xxx—A plant processing 1,000 tons of raw refuse per day could be expected to

reclaim each day enough ferrous metal to make all the iron and steel parts for


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[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHIC

OR TABULAR MATERIAL)]

[NOTE: MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE (GRAPHICOR TABULAR MATERIAL)]

more than 55 4-door sedans.

99 xxx—About 36 billion bottles are discarded each year in the U.S. as solid

waste. Each American discards a glass bottle on the average of about one every

two days. The average returnable beer bottle used to make 31 round trips from

the brewery, to the consumer, and back to the brewery. The average is now 19

trips. In some cities, it is only 4. People are discriminating less betweenreturnable and nonreturnable bottles.

100 xxx—Glass reclaimed from raw refuse can be used in making new glass, or for

such salable products as building bricks, mineral wool for insulation, and road

surfacing (when ground and mixed with asphalt).

101 xxx—Aluminum present in refuse in the form of cans alone amounts to 10 percent of the total primary production. This metal together with other

aluminum recovered from refuse would find a ready market at existing

secondary smelters for conversion to high grade casting alloys.

102 xxx—The other heavy nonferrous metals could be used readily in producing

brass ingot or the mixture could be further refind and separated into the

constituent metals.

103 xxx—The rate at which we generate further refined and separated into within

20 years, even if we are able to recycle 70 percent of our solid wastes our needs

for landfill space will remain the same. And landfill space is, even now,

becoming harder and harder to find.

104 (Refuse-disposal and refuse-recovery charts appear on pp. 718 and 719

respectively.)

105 URBAN REFUSE DISPOSAL IN THE UNITED STATES 1972

106

BUREAU OF MINES DRYSORT REFUSE RECOVERY SYSTEM

107

108 APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART


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109 Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332

provides:

110 § 4332. Cooperation of agencies; reports; availability of information;

recommendations; international and national coordination of efforts.

111 The Congress authorizes and directs that, to the fullest extent possible: (1) the

policies, regulations, and public laws of the United States shall be interpreted

and administered in accordance with the policies set forth in this chapter, and

(2) all agencies of the Federal Government shall—

112 (A) utilize a systematic, interdisciplinary approach which will insure the

integrated use of the natural and social sciences and the environmental design

arts in planning and in decision making which may have an impact on man'senvironment;

113 (B) identify and develop methods and procedures, in consultation with the

Council on Environmental Quality established by subchapter II of this chapter,

which will insure that presently unquantified environmental amenities and

values may be given appropriate consideration in decisionmaking along with

economic and technical considerations;

114 (C) include in every recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality of the human

environment, a detailed statement by the responsible official on—

115 (i) the environmental impact of the proposed action, (ii) any adverse

environmental effects which cannot be avoided should the proposal be

implemented,

116 (iii) alternatives to the proposed action,

117 (iv) the relationship between local short-term uses of man's environment and

the maintenance and enhancement of long-term productivity, and

118 (v) any irreversible and irretrievable commitments of resources which would be

involved in the proposed action should it be implemented.

119 Prior to making any detailed statement, the responsible Federal official shall

consult with and obtain the comments of any Federal agency which has


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jurisdiction by law or special expertise with respect to any environmental

impact involved. Copies of such statement and the comments and views of the

appropriate Federal, State, and local agencies, which are authorized to develop

and enforce environmental standards, shall be made available to the President,

the Council on Environmental Quality and to the public as provided by section

552 of Title 5, and shall accompany the proposal through the existing agency

review processes;

120 (d) study, develop, and describe appropriate alternatives to recommended

courses of action in any proposal which involves unresolved conflicts

concerning alternative uses of available resources;

121 (E) recognize the worldwide and long-range character of environmental

problems and, where consistent with the foreign policy of the United States,

lend appropriate support to initiatives, resolutions, and programs designed tomaximize international cooperation in anticipating and preventing a decline in

the quality of mankind's world environment;

122 (F) make available to States, counties, municipalities, institutions, and

individuals, advice and information useful in restoring, maintaining, and

enhancing the quality of the environment;

123 (G) initiate and utilize ecological information in the planning and development

of resource-oriented projects; and

124 (H) assist the Council on Environmental Quality established by subchapter II of

this chapter.

125 Pub.L. 91—190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853.

126 Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice

REHNQUIST join, dissenting in part.

127 I would reverse the judgment of the District Court and order the complaint

dismissed because appellees lack standing to bring this suit. None of our cases,

including inferences that may be drawn from dicta in Sierra Club v. Morton,

405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), where we denied standing

to petitioner there, are sufficient to confer standing on plaintiffs in

circumstances like these. The allegations here do not satisfy the threshold

requirement of injury in fact for constituting a justiciable case or controversy.


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The injury alleged is that the failure of the Commission to suspend a 2.5%

freight rate increase may discourage the transportation of recyclable materials

thus retarding the use of recycled materials, causing further consumption of our

forests and natural resources (some of which might be taken from the

Washington metropolitan area), and resulting in more refuse and undisposable

materials to further pollute the environment.

128 The majority acknowledges that these allegations reflect an 'attenuated line of

causation,' ante, p. 688, but is willing to suspend its judgment in the dim hope

that proof at trial will in some unexplained way flesh them out and establish the

necessary nexus between these appellees and the across-the-board rate increase

they complain of. To me, the alleged injuries are so remote, speculative, and

insubstantial in fact that they fail to confer standing. They become no more

concrete, real, or substantial when it is added that materials will cost more at

the marketplace and that somehow the freight rate increase will increase air pollution. Allegations such as these are no more substantial and direct and no

more qualify these appellees to litigate than allegations of a taxpayer that

governmental expenditures will increase his taxes and have an impact on his

pocketbook, Massachusetts v. Mellon, 262 U.S. 447, 486—489, 43 S.Ct. 597,

600—601, 67 L.Ed. 1078 (1923), or allegations that governmental decisions

are offensive to reason or morals. The general 'right, possessed by every

citizen, to require that the government be administered according to law and

that the public moneys be not wasted' does not confer standing to litigate infederal courts. Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66

L.Ed. 499 (1922). New York did not have standing to complain when it

asserted merely the possible adverse effects of diversion of water from Lake

Michigan upon hypothetical power developments in 'the indefinite future.' New

York v. Illinois, 274 U.S. 488, 490, 47 S.Ct. 661, 71 L.Ed. 1164 (1927).

Assumed potential invasions are insufficient bases for a justiciable case or

controversy. Arizona v. California, 283 U.S. 423, 462, 51 S.Ct. 522, 528, 75

L.Ed. 1154 (1931). As I see allegations in this case, they are in reality littledifferent from the general-interest allegations found insufficient and too remote

in Sierra Club. If they are sufficient here, we are well on our way to permitting

citizens at large to litigate any decisions of the Government which fall in an

area of interest to them and with which they disagree.

129 Assuming, however, that a majority of the Court adheres to the conclusion that

a constitutional case or controversy exists in these circumstances and that

plaintiffs may use, I would agree that the District Court erred in entering aninjunction which Congress quite clearly had long since divested it of the power

to enter. Accordingly, I join Part III of the Court's opinion. I add only that

failure to maintain this country's railroads even in their present anemic


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condition will guarantee that recyclable materials will stay where they are—far

beyond the reach of recycling plants that as a consequence may not be built at

all.

130 Mr. Justice MARSHALL, concurring in part and dissenting in part.

131 I fully agree with and join in Part II of the Court's opinion wherein it sustains

the District Court's determination that the appellees have standing to challenge

the 2.5% interim surcharge on the ground that the Interstate Commerce

Commission's order of Appril 24 permitting the surcharge to take effect was not

issued in compliance with the requirements of the National Environmental

Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The Court goes on,

however, to hold in Part III of its opinion that the District Court lacked power to

issue a preliminary injunction barring implementation of the surcharge due to

the Commission's alleged failure to comply with NEPA in the suspension stageof the rate proceeding. The Court's decision in this respect is, to be sure, a very

narrow one; the decision clearly concerns only the scope of remedies available

to the District Court in the context of a case of this particular character,1 that is,

an ICC rate suspension case. The Court specifically refrains from deciding

whether or not the Commission's alleged failure to comply with NEPA in the

suspension stage is a proper subject for judicial review and, if so, what would

constitute adequate compliance with NEPA at that juncture in the

administrative process. See at p.2421 n. 22. Nonetheless, I am unable to jointhe third portion of the Court's opinion, for I am convinced that there is no lack

of judicial power to issue a preliminary injunction against the interim surcharge

in the context of these cases. I therefore must respectfully dissent from Part III

of the Court's opinion.

132 At the outset, it is essential for purposes of analysis to put the issue upon which

the Court disposes of the cases in proper perspective. Since the Court addresses

only the issue of the District Court's power to grant preliminary relief, we must,of course, assume for the sake of argument that the issues which the Court does

not now reach—namely, whether the procedural requirements of NEPA2 are

applicable at the suspension stage and whether the issue of Commission

compliance is a proper one for judicial review3 —are to be decided in appellees'

favor. In addition, we must accept for the present appellees' assertions that the

interim surcharge, by raising the cost of shipping recyclable materials, will

further accentuate the allegedly unjustifiable disparity between the cost of

shipping those materials and the cost of shipping primary goods, therebyirrationally encouraging the use of primary goods which will lead to a further

degradation of our environment. In other words, in considering the question of

judicial power, we must accept the correctness of the District Court's


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determination that there was a 'strong likelihood' that the Commission had

erred in its conclusion that the interim surcharge "will have no significant

adverse effect on . . . the quality of the human environment within the meaning

of the Environmental Policy Act of 1969," 346 F.Supp., at 200, 201, a

conclusion that had effectively excused the Commission from compliance with

the procedural requirements of NEPA in the context of the surcharge, see 42

U.S.C. § 4332(2)(C).

133 Turning then to the issue of judicial power, it must first be recalled that we deal

here with the grant of only a preliminary injunction; that District Court did not

permanently enjoin enforcement of the interim surcharge upon determining that

the Commission had, in all likelihood, failed to comply with NEPA in the

suspension stage. Properly viewed, I think the injunction at issue in this case

amounts to nothing more than a legitimate effort by the District Court,

following the Commission's refusal to suspend the surcharge, to maintain thestatus quo pending f

Documents

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973)